Statutory Interpretation: Modern Purpose Approach

The Modern Approach to Statutory Interpretation

Builds upon the foundation of text in context, as discussed in the previous week.
Comprises:
- Text in context
- Modern Purpose Approach
- Use of extrinsic materials
- Presumptions

Section 15AA of the Acts Interpretation Act 1901 (Cth) mandates that when interpreting a provision of an Act, the interpretation that best achieves the purpose or object of the Act should be preferred, regardless of whether the purpose is explicitly stated.
- Section 15AA states that “the interpretation that would best achieve the purpose or object of the Act … is to be preferred”

Purpose can be determined in these ways:
- Expressly Stated: Look for an 'Objects of this Act' section, preambles, or the long title
- Deduced: Analyze the text, including the title, section headings, and the scope/content of provisions.

The 2011 amendment to s 15AA clarified that among multiple interpretations that promote the Act's object, the one that best achieves it should be chosen.

The purpose approach is a continuation of working with 'text in context.'
It removes the common law requirement for ambiguity before considering purpose.
- Start with text in context, then consider how the derived meaning aligns with the Act's purpose, as found in the text.
Crucially, at this stage, exclude extrinsic materials.

The aim is to understand the meaning of the text as enacted by parliament, not to impose an independent purpose.
As per the policy ideal underlying restrictions on the purpose approach, courts interpret, not make, law to defer to Parliament.

The interpretation should not stray too far from the statutory language used by Parliament.
Refer to Mills v Meeking
- A literal construction may give way to a purpose approach, but courts construe, not rewrite, the Act in light of its purposes.
- Interpretations should be consistent with the actual wording of the Act.

As per Mills v Meeking, if “meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman”.
According to R v L FCA 1994, “s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”.
As per the Australian Education Union HCA 2012, “In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose”.
As per Mitchell v Bailey relying on Kirby J in Avel, “a court should not speculate about the legislature’s intention”.
According to McHugh J, Saraswati, “in many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation”.

The modern equivalent of the 'Golden Rule' allows minor corrections based on purpose to address errors or oversights in the text.
The extension of the purpose approach reveals errors or oversights in the final text of the Act.
LDL goes into detail on how far courts can go to 'read in' or substitute words.

Justice McHugh's 3 conditions:
- Know the mischief the Act was dealing with.
- Be satisfied Parliament inadvertently overlooked an eventuality.
- Be able to state with certainty what words Parliament would have used.

Cautionary words about Bermingham. Says the 3 conditions in Bermingham do not allow the courts to supply words that were omitted by the parliament.
- Construction must remain “text based”.
- “words which actually appear in the statute must be reasonably open” to the construction.
- Court must confine itself to “the range of possible meanings” … of the text.
- Caution - does not permit “supplying omitted” words. Only using the extra words to express “the court’s conclusion with clarity”.

HCA resolved the controversy
‘The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. The judgment is readily answered in favour of the addition or omission in the case of simple, grammatical drafting errors which if uncorrected would defeat the object of the provision … it is answered against a construction that fills ‘gaps disclosed in legislation’ … or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’ per French, Crennan and Bell JJ (majority)
And some interesting language in the dissent, about reading ‘implicit words’ of extension or limitation (p 387 in LDL).
And, acknowledgement that the purpose approach might involve reading a provision ‘as if it contained additional words’ (see LDL p 387) per Gageler and Keene JJ, noted in footnote 85).

Victoria, Court of Appeal of the Supreme Court has adopted a multi-faceted approach. Insertion of the word “explicity” in the relevant statute was said to
- not depart too far from the language
- was ‘easy to identify’, and
- the modified reading accorded with the statutory scheme
The multiple cases with different tests demonstrate instability in the law and opens the possibility for different arguments (that need to be evaluated).

Analyze the text of the Act; search for express purpose, or deduced purpose.
Consider whether your proposed construction of the text, based on purpose, unreasonably “strains” the statutory language and you are in fact proposing to “rewrite” (Mills v Meeking) the provision or supply omitted words (R v Young) in which case be guided by HCA in Taylor which establishes some tests of ‘degree’.

S 15AA generally preferred because no need to show ambiguity (as needed under common law).
Provides an alternative argument based on purpose.
The older common law approach becomes very useful when we want to work with extrinsic materials under s 15AB .

What can be found from the text of the Act, that gives an indication of purpose? Could be an objects clause, or a long title; or it might just be a deduction of purpose obtained from the provisions themselves.
What might be omitted from the Act, an oversight, that may (depending on degree and application of various tests) be able to be ‘read in’, or substituted/corrected etc?
There is considerable nuance and analysis needed, including thinking about what the text of the Act reveals about the purpose of the legislation.

Assess whether the meaning is clear before going on to extrinsic materials.
If at the end of these first two phases of analysis you have a clear and consistent understanding of what the Act means; is there any need to go on and continue to analyse relevant extrinsic materials?
Extrinsic Materials – parliamentary materials are part of the broader context of the Act (and we can now consider these early in our interpretation). An argument based on extrinsic materials will generally be weaker than an argument based on the text of the Act. Next lecture.

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